Lester v. Harward

• Decision Date: 07 March 1917
• Docket Number: (No. 108.)
• Court: North Carolina Supreme Court
• Parties: LESTER et al. v. HARWARD et al.

91 S.E. 698

(173 N.C. 83)

LESTER et al.

v.HARWARD et al.

(No. 108.)

Supreme Court of North Carolina.

March 7, 1917.

Appeal from Superior Court, Chatham County; Stacy, Judge.

Proceedings for sale of land for partition by Bina Harward Lester and others against J. H. Harward and others, who filed a plea of sole seisin. Judgment for plaintiffs, and defendants except and appeal. New trial granted.

It was admitted in this court that W. B. Harward, the father of the feme plaintiff, and the grandfather of the defendants, was originally the owner of the land in controversy, and that the plaintiff and the defendants are his heirs at law. The defendants claimed that they were the owners of the land by adverse possession, held by their father, Needham B. Harward, and themselves. At the conclusion of the evidence, his honor ruled that there was no evidence of adverse possession to be submitted to the jury, and the defendants excepted.

L. L. Tilley, of Durham, for appellants.

Fred W. Bynum, of Pittsboro, and Hayes & Gibbs, for appellees.

ALLEN, J. The case on appeal, which was not settled by the judge, and the record show several irregularities.

The complaint and answer raise the issue as to whether the plaintiff and defendants are tenants in common of the land described in the complaint, while the issue submitted to the jury was as to the sole seisin of the defendants, which, in the absence of admissions by the parties, would not be determinative, nor sufficient to support the verdict. It does not follow that the plaintiff and defendants are tenants in common because the defendants are not sole seised, unless there is an admission to this effect.

Again the burden of proof was placed on the defendants, and at the close of the evidence a motion for judgment as of nonsuit on the defendants' evidence was allowed.

The burden of proof is on the plaintiff when sole seisin is pleaded (Huneycutt v. Brooks, 116 N. C. 793, 21 S. E. 558), although it will devolve on the defendant to establish adverse possession after a prima facie case of a tenancy in common is made out, and there is no precedent for a judgment of nonsuit of a defense.

It is probable the case on appeal does not state accurately the action of the court (and our knowledge of the learned judge before whom the trial was had leads to this conclusion), and that his ruling was that the defendants had not offered sufficient evidence of adverse possession to justify submitting it to a jury, and we will so treat it.

The plaintiff testified that ...